Antitrust Law Daily Wrap Up, PRIVACY—S.D. Ind.: Calls to cell phone may violate TCPA even where recipient is not charged, (Jan 3, 2014)

By Edward L. Puzzo, J.D.

Unsolicited calls to a cell phone using automatic telephone dialing systems may violate the Telephone Consumer Protection Act, even when the receiving party is not charged for the call or charged only in the expenditure of minutes under a fixed-rate cell phone, the federal court in Indianapolis has ruled (Markovic v. Appriss, Inc., December 31, 2013, Magnus-Stinson, J.).

Shaya Markovic brought a claim against Appriss, Inc., doing business as buycrash.com, alleging violation of the Telephone Consumer Protection Act (TCPA). Markovic alleged that soon after being involved in a auto accident, he received an unsolicited recorded message on his cell phone from the defendant, using an automatic telephone dialing system, advertising a service for obtaining accident reports. Markovic alleged damages in the form of invasion of privacy, using minutes from his cell phone plan, and time expended attending to the unwanted call.

Phone charges to recipient. The TCPA prohibits any person from using an automatic telephone dialing system to make non-emergency calls “to any telephone number assigned to … cellular telephone service … or any service for which the called party is charged for the call.” 47 U.S.C.§ 227(b)(1)(A)(iii), the court noted. Appriss, claiming that the language of the statutory text is unambiguous, moved to dismiss the complaint on the grounds that plaintiff failed to allege that he was specifically charged for the call he received from Appriss. Markovic responded that his allegation, that minutes were used from his cell phone plan, sufficiently met the statutory requirements.

The court ruled for Markovic and denied Appriss’ motion to dismiss. Citing the Illinois case of Martin v. Leading Edge Recovery Solutions, LLC, 2012 WL 3292838 (N.D. Ill. 2012), the court stated that such calls are prohibited by the TCPA even if the called party does not incur a charge that is specifically linked to that call. The court further noted that the TCPA was amended in 1992 to allow the Federal Communications Commission (FCC) to exempt certain calls from TCPA requirements if the called party were not charged. The court further noted that if uncharged calls were already exempt, as Appriss alleges, no FCC rule would be necessary to exempt such calls from the statute’s purview. Moreover, the expenditure of minutes from a cell phone plan alone is sufficient to qualify, the court continued. Thus, even if the TCPA required the plaintiff to be charged for receiving the call, plaintiff sufficiently stated a claim by alleging that the call required him to use cell phone minutes, the court ruled.

The case is Civil Action No. 1:13-cv-1439-JMS-MJD.

Attorneys: Scott D. Owens (Scott Owens, P.A.) and Alexander H. Burke (Burke Law Offices, LLC) for Shaya Markovic. J. Denis Ogburn (Martin Ogburn & Zipperle, PLLC) for Appriss, Inc.

Companies: Appriss, Inc.

Cases: Privacy IndianaNews